Shekhar Gupta Kaveri Shah Vs Smt. Meena Singh

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2025:CGHC:1453-DB

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Judgment Reserved on : 27/11/2024

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Judgment Delivered on : 09/01/2025

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FA No. 19 of 2019

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Shekhar Gupta Kaveri Shah, S/o Shri Harinarayan Gupta, aged about 35 years, Occupation Business R/oS-1/B-28 Vasundhara Vihar – Godhanpur, Post Fundurdihari, P.S. Gandhinagar, Tahsil Ambikapur, District Surguja (C.G.)

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---- Appellant/Defendant No.1

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Versus

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1. Smt. Meena Singh, W/o Late Arun Singh, aged about 45 years, Occupation House Wife, R/o S-3/F-11, Vashundhara Vihar, Godhanpur Post Fundurdihari, P.S. Gandhinagar, Tahsil Ambikapur, District Surguja (C.G.)………… .Plaintiff

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State of Chhattisgarh Through – the Collector, Surguja (Ambikapur), District Surguja, Chhattisgarh

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---- Respondents

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For Appellant : Mr. Ashok Kumar Shukla with Ms. Prakriti Deo, Advocates. For Respondent No.1 : Mr. A.N. Bhakta and Mr. Vivek Bhakta, Advocates. For Respondent Nos.2 : Mr. Ankur Kashyap, Dy. Govt. Advocate.

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Hon'ble Smt Justice Rajani Dubey &

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Hon’ble Shri Justice Bibhu Datta Guru

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C A V Judgment

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Per Rajani Dubey, J.

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The appellant/defendant No.1 has preferred this first appeal being aggrieved by the judgment and decree dated 25.07.2017 passed by 2^nd Additional District Judge, Ambikapur, Sarguja (C.G.), in Civil Suit No.A-25/2014, whereby the suit filed by the plaintiff/respondent No.1 herein for specific performance of contract and recovery of amount has been partly allowed. The parties to this appeal shall be referred herein as per their description before the trial Court.

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Brief facts of the case, as per plaint averments, are that the plaintiff's husband Late Shri Arun Singh was posted as Sub Engineer in the Rural Engineering Department, Govt. of Chhattisgarh, and working in the charge of Sub-Divisional Officer. During the service period, plaintiff’s husband died untimely on 19.04.2010. The plaintiff and her children being the legal heirs received a large sum of money after the death of her husband/father, which was deposited by the plaintiff in different accounts to secure her family’s future. The plaintiff's husband during his lifetime had purchased a plot in Dutta Colony and had constructed a two storey residential building on it. After the death of her husband, the plaintiff had rented the ground floor of the said building to defendant No.1 for L.G. Company’s service center on a monthly rent of Rs.7,000/-. Later, the upper floor of the

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building was also acquired by the defendant No.1 from the plaintiff on an increased rate of Rs.10,000/- per month. In the month of February, 2011, defendant No.1 told plaintiff that he has a part of land bearing Khasra No. 352/4 in Vasundhara Colony situated in village Fundudihari, Tehsil Ambikapur admeasuring about 0.014 hectare i.e. about 32X48 sq. ft. on which a house with all facilities has been constructed by taking loan from State Bank of India, Collectorate Branch, Ambikapur, but due to financial problem, he was not in a position to pay the installments of the loan and interest on the loan amount was increasing day by day, therefore, to re-pay the loan amount, he intend to sale the said house. On repeated request made by the defendant No.1 that if the said house is not purchased by her, he would be ruined in debt, then the plaintiff agreed to buy the said house from defendant No.1 for sale consideration of Rs. 10,00,000/-. On the deal being finalised, the plaintiff transferred Rs.7,00,000/- from the account of her elder daughter Aanchal Singh to the account of defendant No.1 on 19.04.2011 and also gave him Rs. 1,00,000/- in cash from her own pocket. The next day, an agreement to this effect was executed by both the parties in Ambikapur court. According to the present record of the said house, the changed Khasra number is 352/139 and area is 0.014 hectare. After receiving Rs. 8,00,000/- (eight lakhs) as

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earnest money, the defendant No.1 gave formal possession of the suit property to the plaintiff. Thereafter, on the request of the defendant No.1 to give the suit property on rent and to vacate the suit property as soon as he gets a rented house, the plaintiff agreed to give the suit property on rent and rent agreement was also executed in this regard and since then he has been residing in the suit property. Since the 'suit property' is revenue land and diverted, as such, permission of the Collector was required for its sale, therefore, after execution of the agreement, on submitting an application in the court of Collector Surguja, Ambikapur for obtaining permission to sell the suit property, all formalities were completed and the Collector granted permission for sale of the 'suit property' on 20.03.2017. During the operation of above case, defendant No.1 obtained Rs. 5,64,697/- from the plaintiff stating that he needed money to get back the land rights and rin pustika of the suit property deposited in the bank against security of the bank loan, which the plaintiff transferred from the bank account of her younger daughter Anamika Singh to the bank account of defendant No.1. Even after obtaining permission to sell the 'suit property' on 20.03.2012, defendant No.1 kept on delaying in executing the sale deed of the 'suit property' in favor of the plaintiff and kept on playing hide and seek with the plaintiff. Apart from this, defendant No.1 kept on

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making false promises to the plaintiff. Even on asking for the rent, the defendant No.1 used to evade on one or the other basis. The plaintiff after being fully satisfied that the defendant No.1 was committing sheer betrayal and fraud with her, whereas the plaintiff was willing and ready to get the sale deed of the 'suit property' executed in her favour from the beginning till today. Due to the refusal of the defendant No.1 to execute the sale deed of the 'suit property' in favour of the plaintiff, the plaintiff has instituted the suit for specific performance of the contract and for recovery of the amount of Rs. 3,64,697/-.

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The defendants No.1 filed his written statement and except admitted facts denied most of the plaint averments stating that the plaintiff had prior knowledge about the suit property of the defendant No.1 in Vasundhara Colony. Similarly, there was landlord and tenant relationship between defendant No.1 and plaintiff and the defendant has been paying rent regularly. The plaintiff herself willing to purchase the suit property as she was having knowledge that the defendant No.1 would need money for expansion of his business and plaintiff made the defendant No.1 agreed for sale of suit property. It was also submitted that in-fact, the agreement to sale the suit property was executed formally just to obtain the permission of Collector. No transaction of money took place between them. The actual sale price of the suit

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property was decided differently between defendant No.1 and plaintiff which was not mentioned in the agreement. It was also stated that on 20.03.2012, after the Collector, Sarguja gave permission to sell the suit property, it was agreed by the defendant No.1 to complete the sale transaction and get the registry executed, on which it was said by the plaintiff that that the registry would be executed by the end of month. Thereafter, on the last date of March, defendant No.1 and plaintiff went to Patwari Halka to get the revenue record and sale proposal of the suit property, then Patwari informed that the sale of suit property has been banned by the Collector, Sarguja. Due to which, the suit property cannot be sold and Patwari refused to give sale proposal. This fact was well within the knowledge of plaintiff but the plaintiff filed the suit on false grounds concealing the said fact. It was also stated that since the transfer of the suit property is subject to the permission of the Collector, in such a situation, all the documents related to the transfer of suit property are ineffective without the permission of the Collector, as such, the plaintiff cannot file the suit for specific performance of the contract on the basis of unstamped contract and without the permission of Collector. The suit filed by the plaintiff is not maintainable as the plaintiff did not properly valued her case and paid less court fee.

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The learned trial Court, on the basis of pleadings made by

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the parties, framed as many as 07 issues, out of which, Issue Nos. 1, 2, 3, 6 and 7 were concluded to be as ‘Proved’ and Issue No. 4 ‘Not Proved’ & Issue No. 5 with regard to recovery of amount discussed in para 61 of the impugned judgment. The learned trial Court after appreciating oral and documentary evidence, partly decreed the suit.

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Learned counsel for the appellant submits that the impugned judgment and decree dated 25.07.2017 has been passed by the learned trial Court without appreciating the facts of the case and the legal issue involved in the matter, as such, the finding recorded by the learned trial Court is full of illegality, perversity and anomalies, therefore, it is not sustainable in the eyes of law. The learned trial Court did not appreciate the oral and documentary evidence produced by the defendant in his favour. Moreover valuable admissions and contradictions on the part of respondents' evidence have not been appreciated. Learned counsel further submits that the learned trial Court has failed to appreciate that the plaintiff did not produce proper documentary and oral evidence to prove the execution of agreement to sale, but the same has not been considered by the learned trial Court. Further, the plaintiff has not paid ad valorem fee as the plaintiff has paid the Court fee only on the amount of agreement i.e. Rs.10 Lakh, but the further Court fee which was required for recovery of excess amount

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has not been paid, thus the suit which was decreed was not maintainable for insufficiency of requisite Court fee. Learned counsel also submits that in the suit of specific performance of contract heavy burden lies on the plaintiff to prove the execution of agreement to sale with clear and clinching evidence, but in this case the plaintiff has not proved the execution of agreement with substantial evidence. The plaintiff did not come out with a clear case of money transaction and her pleading itself is a contradictory falsifying her statements. There is no direct and manifest evidence to show that the transaction of claimed amount has ever taken place. Thus, the impugned judgment and decree is liable to be set aside.

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Reliance has been placed on the decisions of Hon’ble Apex Court in the matter of Lakshmi Sreenivasa Cooperative Building Society Limited V. Puvvada Rama (Dead) by legal Representatives and Others. reported in (2018) 9 SCC 251, Suraj Lamp and Industries Private Limited (2) Through Director V. State of Haryana and Another reported in (2012) 1 SCC 656, decisions of this Court in the matter of Manoj Kumar Sahu V. Awtar Singh (Died) Through L.Rs & Another reported in 2018 ($) C.G.L.J. 259, and Manoharlal V. Ramnihore & Others reported in 2011 (3) C.G.L.J. 419, Hon’ble Apex Court in the matter of

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On the other hand, learned counsel for respondent

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supporting the impugned judgment and decree passed by the learned trial Court submits that the learned trial Court minutely appreciated oral and documentary evidence and rightly passed the decree in favour of plaintiff. It has been further submitted that the plaintiff had also filed cross appeal against some finding by the learned trial Court but the cross appeal of plaintiff was dismissed by this Court. The learned trial Court rightly passed the decree in favour of plaintiff to return the amount of Rs.13,64,697/- and it is clear from the plaint that the plaintiff paid ad valeorem Court fee before the trial Court. Thus, the appeal being without any merit is liable to be dismissed.

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Reliance has been placed on the decisions of Hon’ble Apex Court in the matter of Gobind Ram V. Gian Chand reported in (2000) 7 SCC 548 and Saurav Jain and Another V. A.B.P. Design and Another reported in (2022) 18 SCC

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633.

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We have heard learned counsel for the parties and perused the material available on record.

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In the matter of specific performance of contract, it is incumbent upon the plaintiff to prove continuous readiness and willingness.

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It is apparent from the record of the learned trial Court that the plaintiff instituted the suit for specific performance of

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agreement dated 20.04.2011 against the defendant No.1 and has filed copy of agreement (Ex.P/9). It is an admitted position before the learned trial Court that defendant No.1 was tenant of plaintiff and he was running service center in the premises which was let out to defendant by the plaintiff and for the suit property one agreement was executed between the plaintiff and defendant No.1. It is also not disputed that the suit property is revenue land and without the permission of Collector the sale deed cannot be execute. The learned trial Court on the basis of pleading of the parties, framed as many as 08 issues, out of which 07 issued were important, which are reproduced herein as under :-

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dzekad	okniz’u	fu"d"kZ
1	D;k izfroknh dz-&1 Jh ’ks[kj xqIrk us okn xzLr edku dks 10]00]000 ¼nl yk[k #i;s½ esa oknh Jherh ehuk flag dks fodz; djus dks lafonk fd;k gS+ \|^^ izekf.kr gS ^^
2	D;k izfroknh dz-&1 ’ks[kj xqIrk fnukad 20-04-2021 dks fodz; lafonk dh bdjkjukek fu"Ikkfnr fd;k gS \|^ izekf.kr gS ^^
3	D;k izfroknh dz-&1 ’ks[kj xqIrk fodz; jkf’k ls vf/kd 13]64]697@& :i;s oknh Jherh ehuk flag ls izkIr fd;k gS \|^ izekf.kr gS ^^
4	D;k oknh Jherh ehuk flag lafonk ikyu djkus dh vf/kdkjh gS \|^ ugh gS ^^
5	D;k oknh Jherh ehuk flag 3]64]697@& :i;s dks izfroknh 'ks[kj xqIrk ls izkIrk djus dh vf/kdkjh gS \|^ dafMdk 61 ds vuqlkj^^
6	D;k okn dk ewY;kadu lgh gS \|^ gka ^^
7	D;k okn esa U;k;ky; 'kqYd mfpr gS \|^ gka ^^

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The learned trial Court after appreciating the evidence recorded its finding that Issue Nos. 1, 2, 3 proved in favour

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of plaintiff and issue No.4 decided in favour of defendant No.1. The learned Trial Court also recorded its finding that the suit valuation and court fee are proper and finds that the plaintiff is not entitled for sale deed but she was held entitled to receive Rs.13,64,697/- which she had given to the defendant No.1 against suit property.

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The submission of learned counsel for the defendant No.1/appellant is that the plaintiff has failed to prove this fact that she gave earnest money to defendant No.1 but it is clear from the statement of Priya Devgam (PW/4), who is Assistant Branch Manager of I.D.B.I. Bank, Ambikapur, has produced account statement (Ex.P/19 and P/19) and stated in para 3 that on 19.04.2011, Rs.7,00,000/- was transferred to the account of defendant No.1-Shekhar Gupta from the account (Ex.P/18) of Smt. Aanchal Singh through cheque No. 11476. Further, in para 4, this witness has stated that on 19.07.2011, Rs.5,64,697/- was transferred to the account of defendant No.1-Shekhar Gupta from the saving account (Ex.P/19) of Anamika Singh through cheque No. 23952.

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Further, Abhishek Rajak (PW/5) is also Assistant Bank Manager in State Bank of India, who produced whole statement of loan account No.30521620893 of defendant No.1-Shekhar Gupta and stated that on 19.07.2011 loan account of defendant No.1-Shekhar Gupta was foreclosed when an amount of Rs.5,64,697/- was deposited in the said

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account of defendant No.1-Shekhar Gupta.

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The defendant No.1 has filed certified copy of application (Ex.D/1) which was submitted before the Collector, Sarguja by the defendant No.1 with regard to permission to sell the suit property to the plaintiff. In Ex.D/1, the defendant No.1 admitted that he wanted to sale the suit property to plaintiff for sale consideration of Rs.10,00,000/- and plaintiff has paid Rs.9,50,000/- to defendant No.1 and a registered agreement was also executed between them on 20.04.2011. From the aforesaid testimonies of these witnesses, it is established that transaction of money was took place between the defendant No.1 and plaintiff with respect to the suit property and for this reason we do not find any force in the argument of learned counsel for the defendant No.1 that the plaintiff did not give earnest money to the defendant No.1.

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The learned trial Court also appreciated oral and documentary evidence and finds that defendant No.1 received Rs.13,64,697/- and issue No.4 decided by the learned trial Court against plaintiff on this ground that after the permission for sale of the suit property was given by the Collector Sarguja on 20.03.2012 as per Ex.P/6, the sale of the suit property was currently stayed by Collector Sarguja on 31.08.2012 as per Ex.D-4 and the learned trial Court recorded finding that as per Section 56 of the Contract Act,

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specific performance of agreement is not possible and partly allowed the suit of the plaintiff and directed the defendant No.1 to return the amount of Rs.13,64,697/-.

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While dealing with the issue of recovery of money in a specific performance of contract, this Court in the matter of Priyabratta Choudhary & Ors. V. Jayshankar Sahu [Neutral Citation No.2024:CGHC:42295-DB ] , held in para 13 as under :-

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“13. Vide judgment dated 25.07.2023 in the matter of Mohammad Asraf Vs. Smt. Rubina Bano passed in FA No. 85 of 2018, this Court observed and held in paras 20, 21 and 22 as under:-

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“(20) In Satish Batra v. Sudhir Rawal reported in 2013 (1) SCC 345 Hon'ble Supreme Court held in para 15 that to justify the forfeiture of advance money being part of 'earnest money' the terms of the contract should be clear and explicit and that part payment of purchase price cannot be forfeited unless it is a guarantee for the due performance of the contract. In other words, if the payment is made only towards part payment of consideration and not intended as earnest money then the forfeiture clause will not apply.(21) The Supreme Court in India Council for Enviro-Legal Action v. Union of India (2011) 8 SCC 161 discussed different case laws and observed that unjust enrichment is the unjust retention of a benefit to the loss of another. Few of paras I.e., para

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nos. 152, 153, 154, 155 & 156 are relevant and quoted below:

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‘Unjust enrichment’ has been defined by the court as the unjust retention of a benefit to the loss of another or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. A person is enriched if he has received a benefit, and he is unjustly enriched if retention of the benefit would be unjust. Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another.

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Unjust enrichment. 15 "the unjust retention of a benefit to the loss of another or the retention of money or property of another against the fundamental principles of justice or equity and good conscience." A defendant may be liable "even when the defendant retaining the benefit is not a wrongdoer and even though he may have received [it] honestly in the first instance." (Schock v. Nash (72 A 2d 217) Delware 1999), 232-33.

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Unjust enrichment occurs when the defendant wrongfully secures a benefit or passively receives a benefit which would be unconscionable to retain. In the leading case of Fibrosa Spolka Akcyjna v. Fairbairn Lawson Combe Barbour Ltd. [1942] 2 All ER 122, Lord Wright stated the principle thus

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“…...(A)ny civilized system of law is bound to provide remedies for cases to what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the

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money of, or some benefit derived from another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or in tort, and are now recognized to fall within a third category of the common law which has been called quasi-contract or restitution."

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Lord Denning also stated in Nelson Larholt, [1947] 2 All ER 751 as under:-

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“…….It is no longer appropriate, however, to draw a distinction between law and equity. Principles have now to be stated in the light of their combined effect. Nor is it necessary to canvass the niceties of the old forms of action. Remedies now depend on the substance of the right, not on whether they can be fitted into a particular frame work. The right here is not peculiar to equity or contract or tort, but falls naturally within the important category of cases where the court orders restitution, if the justice of the case so requires.”

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The above principle has been accepted in India. This Court in several cases has

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applied the doctrine of unjust enrichment."

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(22) Though learned trial Court dismissed the suit for specific performance of contract and held that the forfeiture of advance amount was correct but the fact remains in view of the judgments quoted above that the total amount of Rs.4,50,000/- was retained by the respondent / defendant. From the evidence available on record it does appear that payment was made only towards part-payment of

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consideration. Therefore, the plaintiff has a right of restitution and he cannot be deprived of the amount paid to him to the defendant as the facts apparent on the surface of record fortifies the said logic. The Supreme Court also observed that the restitution and unjust enrichment have to be viewed in two stages i.e. pre-suit and post suit. In the pre-suit position the amount is not returned and also in the post- suit the amount is still with the defendant.”

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In the light of above discussion, it is clear in the present case also that the suit property was a diverted one and without the Collector’s permission/order, sale deed of the suit property cannot be executed and the plaintiff has successfully proved this fact that defendant No.1 had received sum of Rs.13,64,697/- against the suit property. It is also apparent from cause title of the plaint that the plaintiff valued the suit, for ready reference, the relevant portion is reproduced herein as under :-

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The learned trial Court also, after appreciation of oral and documentary evidence, decided the issue Nos. 6 and 7 in favour of plaintiff that valuation of suit and court fee was

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proper.

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From the aforesaid discussion of evidence, this Court is of the considered opinion that the finding recorded by the learned trial Court is based on oral and documentary evidence filed by both the parties and the same is according to provisions of Specific Performance Act. This Court does not find any illegality or perversity in the impugned judgment and decree passed by the learned trial Court. The appeal being without any substance is liable to be and is hereby dismissed.

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Let a decree be drawn-up accordingly.

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Sd/Sd/-

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(Rajani Dubey) (Bibhu Datta Guru) Judge Judge

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Digitally signed byVIJAY BHARATRAOpekde PEKDE Date: 2025.01.10 14:29:02 +0530

dzekad	okniz’u	fu"d"kZ
1	D;k izfroknh dz-&1 Jh ’ks[kj xqIrk us okn xzLr edku dks 10]00]000 ¼nl yk[k #i;s½ esa oknh Jherh ehuk flag dks fodz; djus dks lafonk fd;k gS+ \|^^ izekf.kr gS ^^
2	D;k izfroknh dz-&1 ’ks[kj xqIrk fnukad 20-04-2021 dks fodz; lafonk dh bdjkjukek fu"Ikkfnr fd;k gS \|^ izekf.kr gS ^^
3	D;k izfroknh dz-&1 ’ks[kj xqIrk fodz; jkf’k ls vf/kd 13]64]697@& :i;s oknh Jherh ehuk flag ls izkIr fd;k gS \|^ izekf.kr gS ^^
4	D;k oknh Jherh ehuk flag lafonk ikyu djkus dh vf/kdkjh gS \|^ ugh gS ^^
5	D;k oknh Jherh ehuk flag 3]64]697@& :i;s dks izfroknh 'ks[kj xqIrk ls izkIrk djus dh vf/kdkjh gS \|^ dafMdk 61 ds vuqlkj^^
6	D;k okn dk ewY;kadu lgh gS \|^ gka ^^
7	D;k okn esa U;k;ky; 'kqYd mfpr gS \|^ gka ^^

Shekhar Gupta Kaveri Shah v. Smt. Meena Singh

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Shekhar Gupta Kaveri Shah v. Smt. Meena Singh

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